Citation Nr: 0609885
Decision Date: 04/05/06 Archive Date: 04/13/06
DOCKET NO. 04-20 039 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa
THE ISSUES
1. Entitlement to an effective date earlier than September
22, 1969, for the award of service connection for bilateral
hearing loss.
2. Entitlement to an effective date earlier than December
22, 1998, for the award of a 100 percent rating for bilateral
hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran served on active duty from April 15 to August 18,
1943.
This appeal comes before the Department of Veterans Affairs
(VA) Board of Veterans' Appeals (Board) from an August 2003
rating decision of the VA Regional Office (RO) in Des Moines,
Iowa that granted service connection for bilateral hearing
loss, effective from September 22, 1969, and assigned a 100
percent disability rating from December 22, 1998.
The appellant was afforded a personal hearing at the RO in
August 2004. The transcript is of record. At the hearing
and in correspondence received in August 2004, the veteran
withdrew the issues of entitlement to concurrent payments of
VA disability pension and compensation and entitlement to
monthly compensation greater than $110.00 for a spouse
determined to be in need of regular aid and attendance.
These matters are no longer for appellate consideration.
This case was advanced on the docket on account of the
veteran's age.
(Consideration of the claim of entitlement to an effective
date earlier than December 22, 1998, for the award of a 100
percent rating for bilateral hearing loss is deferred pending
completion of the development sought in the remand that
follows the decision below.)
FINDINGS OF FACT
1. Service connection for defective hearing was denied by a
September 1967 Board decision.
2. The veteran's application to reopen a claim of
entitlement to service connection for hearing loss was
received on August 25, 1969.
CONCLUSION OF LAW
The criteria for an effective date of August 25, 1969, for
the grant of service connection for bilateral hearing loss
have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2005);
38 C.F.R. § 3.400 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, the Board notes that the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), was promulgated in November 2000, and has
imposed new duties on VA to provide notice and assistance to
claimants in order to help them substantiate their claims.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2005). To implement the provisions of the law, VA
promulgated regulations codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2005).
The Act and implementing regulations include an enhanced duty
on the part of VA to notify a claimant of the information and
evidence needed to substantiate a claim. 38 U.S.C.A. § 5103;
38 C.F.R. § 3.159(b) (2005). In addition, they define the
obligation of VA with respect to its duty to assist the
claimant in obtaining evidence. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c) (2005).
Considering the record in light of the duties imposed by the
VCAA and its implementing regulations, the Board finds that
all notification and development action needed to fairly
adjudicate the claim for an earlier effective date for
service connection has been accomplished. As evidenced by
the statement of the case, and the supplemental statements of
the case, the appellant and his representative have been
notified of the laws and regulations governing entitlement to
the benefit sought, and informed of the evidence of record.
These discussions also served to inform him of the evidence
needed to substantiate the claim.
The Board also finds that the statutory and regulatory
requirement that VA notify a claimant of what evidence, if
any, will be obtained by the claimant and which evidence, if
any, will be obtained by VA, has been met. 38 U.S.C.A.
§ 5103(a); see Quartuccio v. Principi, 16 Vet. App. 183
(2002) (addressing the duties imposed by 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159). In a letter to the
appellant dated in June 2005, the RO informed him of what the
evidence had to show to substantiate the claim, what medical
and other evidence the RO needed from him, what information
or evidence he could provide in support of the claim, and
what evidence VA would try to obtain on his behalf. The
letter also advised him to submit relevant evidence or
information in his possession. 38 C.F.R. § 3.159(b) (2005).
The United States Court of Appeals for Veterans Claims
(Court) has held that notice required by 38 U.S.C.A.
§ 5103(a), and 38 C.F.R. § 3.159(b), should generally be
provided prior to the initial adverse decision on the claim.
Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The
Court went on to say, however, that its decision was not
meant to invalidate any existing decision made prior to such
notice, and, indeed, that VA could satisfy VCAA notice
requirements by ensuring that the proper notice was
ultimately provided after the initial adverse decision on the
claim. Id, at 120, 122-4. The Board does not find that any
late notice under the VCAA requires remand to the RO.
Nothing about the evidence or any response to the RO's
notification suggests that the case must be re-adjudicated ab
initio to satisfy the requirements of the VCAA. See also
Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March 3,
2006),
The Board finds that VA has made the required efforts to
assist the appellant in obtaining the evidence necessary to
substantiate his claim. Private clinical data identified by
the veteran have been requested and associated with the
claims folder, and extensive VA outpatient records have also
been retrieved. He was provided the opportunity for a
Travel Board hearing at the RO in August 2005 but declined
this option in a letter dated in July 2005. Under the
circumstances, the Board finds that further assistance is not
required. See 38 U.S.C.A. § 5103 A (a) (2).
The appellant avers that service connection for hearing loss
should have been effective as of the date of separation from
his active military service in 1943. He filed claims as
early as August 1946 and he appealed an April 1965 rating
decision that denied service connection for hearing loss. By
a September 1967 decision, the Board denied the claim.
Absent a finding of clear and unmistakable error, the
assignment of effective dates of awards is generally governed
by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2005) and 38 C.F.R.
§ 3.400 (2005). The effective date for a reopened claim,
after a final disallowance (such as the 1967 Board denial),
shall be the date of receipt of the new claim or date
entitlement arose, whichever is later. 38 C.F.R.
§ 3.400(q)(1)(ii) (2005). See Nelson v. Principi, 18 Vet.
App. 407, 409 (2004); Leonard v. Principi, 17 Vet. App. 447,
451 (2004); Sears v. Principi, 16 Vet. App. 245, 247 (2002),
aff'd, 349 F.3d 1326 (Fed. Cir. 2003); see also Lapier v.
Brown, 5 Vet. App. 215 (1993).
Applicable regulations provide that a claim may be either a
formal or informal written communication "requesting a
determination of entitlement, or evidencing a belief in
entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2005). A
claim, whether "formal" or "informal," must be "in writing"
in order to be considered a "claim" or "application" for
benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed.
Cir. 1999). Any claim for VA benefits must be submitted in
the form prescribed by the Secretary. 38 U.S.C.A. § 5101(a)
(West 2002 & Supp. 2005). Section § 5101(a) is a clause of
general applicability and mandates that a claim must be filed
in order for any type of benefit to accrue or be paid. See
Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). An
informal claim is any communication indicating an intent to
apply for one or more benefits, and must identify the benefit
sought. 38 C.F.R. § 3.155(a) (2005).
As noted above, the evidence discloses that the veteran filed
claims for service connection for hearing loss several times
after separation from service beginning in 1946. The Board
denied service connection for hearing loss in September 1967.
This decision is final. See 38 U.S.C.A. § 7104 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 20.1100 (2005). As such, new and
material evidence was required to reopen the claim. See 38
U.S.C.A. § 5108 (West 2002 & Supp. 2005); 38 C.F.R.
§ 3.156(a) (2005). The record reflects that following the
final Board denial of the claim in 1967, the veteran
ostensibly filed a claim for nonservice-connected pension
that was received on August 25, 1969. In his application for
pension, he noted a number of disabilities contributing to
inability to work, including hearing loss. In a letter
received on September 22, 1969, the veteran requested that he
be service connected for his "worst disability."
In support of his claim, the appellant submitted a letter
from the Mayo Clinic that, among other things, noted that he
had had difficulty hearing of at least 20 years' duration.
The examining otologist felt that his hearing loss was due to
noise exposure. The record reflects, however, that the
agency of original jurisdiction did not respond to the
appellant's additional evidence, thereby leaving the claim in
an open status. The appellant subsequently attempted to
reopen his claim in 1988, 1990, 1999 and February 2001.
The record reflects that at the request of his Congressman,
the veteran's case was sent to the VA Compensation and
Pension service for administrative review. In a
determination dated in December 2001, it was found that
service connection for hearing loss should have been grated
following the issuance of opinions relevant to his claim by
the VA General Counsel in 1985 and 1988. These opinions
concluded that service connection may be granted for
hereditary diseases that preexisted service and progressed at
an abnormally high rate during service. See VA OGC. Prec.
Op. No. 8-88 (Sept. 29, 1988) (reissued as VAOPGCPREC 67-90
(July 18, 1990)).
As noted previously, the veteran filed a claim for pension
that was received on August 25, 1969 citing hearing loss as a
disability. A claim for compensation may be considered to be
a claim for pension and a claim for pension may be considered
to be a claim for compensation. 38 U.S.C.A. § 5101(a); 38
C.F.R. § 3.151(a) (2005). Therefore, for the purposes of
this appeal, it may be found that a claim to reopen service
connection for hearing loss was first received after the 1967
Board decision on August 25, 1969.
The Board thus finds that the award of service connection for
hearing loss is warranted from August 25, 1969, based on the
date that the claim to reopen was received. Although the
veteran maintains that the effective date of service
connection should be made retroactive to at least the filing
of his original claim in 1946, it is shown that service
connection for hearing loss was previously denied by the
Board in 1967. Because this determination is final, the
earliest date that may be assigned for an award of service
connection is the date a claim to reopen was received.
38 U.S.C.A. § 5110. An effective date of August 25, 1969,
but no earlier, is granted.
ORDER
An effective of August 25, 1969, for the award of service
connection for bilateral hearing loss is granted.
REMAND
The veteran asserts that he is entitled to an effective date
earlier than December 22, 1998, for the award of a 100
percent rating for his hearing loss.
As noted previously, service connection for bilateral hearing
loss has been granted effective from August 25, 1969. In a
rating action dated in August 2003, the RO assigned 10
percent, 20 percent, 40 percent, 60 percent and 100 percent
ratings effective from September 22, 1969, June 24, 1970,
September 16, 1980, September 29, 1980 and December 22, 1998,
respectively.
The Board observes, however, that review of the evidence
shows no document of record that discloses how the RO arrived
at the assigned ratings for those specific dates, except in
the latter-most instance. The rating decision of August 2003
and the February 2005 supplemental statement of the case in
this regard only provide statements as to the levels of
hearing loss shown on audiogram on those dates without
providing the regulatory criteria that support the RO's
conclusions. The Board is of the opinion that apprising the
veteran of the schedular criteria for rating hearing loss
dating back to 1969 is a function of VA's duty to assist in
order that he may be properly informed as to why higher
ratings for those time frames were not assigned. This also
places the veteran on notice of what evidence was required to
establish a 100 percent rating at any time prior to December
22, 1998.
Accordingly, this case is REMANDED for the following actions:
1. The RO must review the claims file
and ensure that all notification and
development actions required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002 & Supp. 2005), the
implementing regulations found at
38 C.F.R. § 3.159 (2005), and any other
legal precedent are fully complied with
and satisfied. The veteran should
specifically be told what is required to
substantiate a claim for a 100 percent
disability rating for bilateral hearing
loss earlier than December 22, 1998, and
advised of the information and evidence
needed to substantiate the claim. The
veteran should be told what part of such
evidence he should obtain and what part
the RO will attempt to obtain on his
behalf. He should also be advised to
provide any evidence in his possession
that is pertinent to his claim. See
Quartuccio v. Principi, 16 Vet. App. 183
(2002); see also Charles v. Principi, 16
Vet. App. 370, 373-374 (2002).
2. After undertaking any further
development deemed appropriate, the RO
should readjudicate the issue on appeal.
The RO's adjudication should include
consideration of rating criteria for
award of a 100 percent rating that have
been effective since 1969 with various
amendments made to those criteria over
the years. If the benefit sought is not
granted, the appellant should be
provided with a supplemental statement
of the case and afforded an opportunity
to respond. The supplemental statement
of the case should set forth the various
rating criteria. 38 C.F.R. § 19.29(b)
(2005). Thereafter, the claims folder
should be returned to the Board for
further consideration.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2005).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs